August 2009

AUDITOR OF PUBLIC ACCOUNTS

A CPA firm that has audited a school district for the 2007, 2008, and 2009 fiscal years is prohibited from being selected to perform the 2010 fiscal year audit of that same school district. (Pickering, 8/28/2009)(#017)(OP-09-00489)

CONFLICT OF INTEREST

No provision in state law would prohibit a former mayor from being employed in the positions described. However, for an opinion regarding potential conflicts of interest the questions may raise under Mississippi's ethics laws, and advisory opinion from the Mississippi Ethics Commission should be sought. (Perkins, 8/21/2009)(#053B)(OP-09-00477)

CONSTABLE

A constable may only receive a fee for serving civil process in justice court when he has served the process and he must sign the return verifying that such process was served by him. (Prestage, 8/28/2009)(#045)(OP-09-00454)

COURTS

A drug court may not require a participant to continue in the program past the five year limitation set forth under probation or non-adjudication statutes, Sections 47-7-37 and 99-15-26, respectively. (Chamberlin, 8/14/2009)(#056)(OP-09-00397) Pursuant to Article 3 Section 29 of the Mississippi Constitution if a felon has been bonded out on a charge and a court finds probable cause that the same person has committed another felony punishable by five years or more while he is out on bond in the first case, the court in the second case should revoke the bond in the first case and the defendant would not be allowed bond in the second case. (Russell, 8/28/2009)(#056)(OP-09-00442) If a case in Justice Court remains on the docket and the plaintiff requests the issuance of an alias summons, the clerk should issue the summons. The defendant may then respond to the suit by filing any defenses he desires, including the affirmative defense of the statute of limitations. (Rimes, 8/28/2009)(#056)(OP-09-00460)

CRIMINAL LAWS

If a Justice Court Judge is not presented with sufficient evidence upon which to find the defendant guilty beyond a reasonable doubt, the Court should acquit the defendant. (Fuller, 8/28/2009)(#057)(OP-09-00474) Municipal law enforcement may conduct a roadblock in the city limits without prior advertisement and without a Mississippi Highway Patrolman being present. A municipality with a population of 2000 or more may run radar on the public streets and on state designated highways within the city limits. (Johnson, 8/7/2009)(#057)(OP-09-00419) A county board of supervisors may retain private counsel to prosecute administrative forfeitures under Section 41-29-176. (Ross, 8/14/2009)(#057)(OP-09-00423)

DEPT. OF BANKING & CONSUMER

Department of Banking, under its authority in Section 81-18-7(6) to implement rules, regulations and interim procedures for mortgage licenses, would be authorized to allow a reasonable time for small loan lenders to obtain a Mortgage Lender License. Given that small loan originators now have until July 31, 2010 to obtain a license, and since such small loan originators work for and in connection with small loan lenders, it would appear reasonable for the Department to also give small loan lenders until July 31, 2010 to be licensed. (Allison, 8/17/2009)(#018)(OP-09-00372)

HOSPITALS-COMMUNITY

County Hospital Board of Trustees is authorized by 41-13-35(5)(q) to implement a "Prompt Pay/Discount policy" which offers varying levels of discounts to patients on their hospital bills, depending on how soon the bill is paid. (Permenter, 8/14/2009)(#092)(OP-09-00455) Pursuant to 41-13-15(7)(a), board of supervisors may lease all or part of the real property comprising a community hospital, but such lease is subject to the express approval of the Board of Trustees of the hospital. If the trustees fail to give approval within 30 days, the board may enter such lease only after complying with the notice requirements in the statute, which also provides for a petition for election on the issue. (Dorrill, 8/21/2009)(#092)(OP-09-00458)

INSTITUTIONS OF HIGHER LEARNING

The current IHL Board may bind itself and MSU for the remainder of its term, but may not bind its successors without express statutory authority. The lease at issue does not fall within the statutory long-term lease provisions or any other long term lease statutes. Absent such express authority, the term or duration of the proposed lease would be in excess of the terms of the current IHL Board and would be voidable at the option of successor IHL Boards. (Lucas, 8/28/2009)(#094)(OP-09-00381)

INTERLOCAL AGREEMENTS

Approval of Renewal of Interlocal Agreement between Tate County, its Sheriff, and Senatobia establishing the Tate County Metro Narcotics Unit. (Lamar, 8/14/2009)(#277)(OP-09-00479) Interlocal Cooperation Agreement between Hinds County and the City of Jackson for resurfacing of a street is approved. (Martin, 8/14/2009)(#277)(OP-09-00472) Approval of Interlocal Agreement establishing the North Central Narcotics Task Force comprised of Claiborne, Grenada, Holmes, Humphreys, Leflore, Carroll, Jefferson and Tunica Counties and the Sheriffs of the named counties. (Banks, 8/27/2009)(#277)(OP-09-00525) Interlocal Cooperative Agreement between WestPoint and Clay County for “Public Safety Interoperability Communications" Grant Program is approved. (Robinson, 8/19/2009)(#277)(OP-09-00480) Interlocal Cooperative Agreement between Kemper County and the City of DeKalb and City of Scooba for "Public Safety Interoperability Communications" Grant Program is approved. (Oden, 8/19/2009)(#277)(OP-09-00470) Interlocal Cooperative Agreement between Newton County and the Town of Chunky for collection of taxes by the county for the town is approved. (Seal, 8/19/2009)(#277)(OP-09-00499) Interlocal Cooperative Agreement between Lawrence County and the Town of Monticello for "Public Safety Interoperability Communications" Grant Program is approved. (Rogers, 8/19/2009)(#277)(OP-09-00494)

LEGISLATIVE

County may lease from the U.S. Corp of Engineers the real property described and proceed with the proposal if it is structured in accordance with Section 19-3-41(9). (Howell, 8/7/2009)(#104)(OP-09-00412)

MUNICIPALITIES

Pursuant to Miss Code Ann. Section 21-31-19, in the case of a reduction in force or curtailment of expenditures, layoffs of municipal civil service employees should be based on seniority until all necessary reductions in force have been accomplished. This applies to any municipal employees to which the protections of civil service have been extended by lawfully enacted ordinance. The manner of determining seniority is best left to the sound discretion of the municipal governing authorities. (Murdock, 8/28/2009)(#149A)(OP-09-00473) Municipal governing authorities are authorized to charge reasonable fees for use by a nonprofit sports association of the athletic fields owned and maintained by the municipality, and may allow the nonprofit sports association to retain the remaining funds raised by the sports association at such fields. The municipality has no control or authority over the money that the sports association retains after payment of fees or how the association spends that money. (Brabham, 8/17/2009)(#142)(OP-09-00437) A municipality may adjust a utility bill when it determines that the utility bill charge was due to an unforeseen circumstance and the customer did not receive the benefit of the utility service. (Glidwell, 8/14/2009)(#142)(OP-09-00457) Notice provisions regarding municipal special meeting must be strictly complied with. (Parker, 8/14/2009)(#142)(OP-09-00478) A municipality is authorized to include incentive provisions in its contracts, provided that such incentive payments are contemplated by the contract and included as a part of the original contract documents and specifications on which the bids are to be submitted; that there are in place predetermined objective standards of measurement to determine whether the incentive payment has been earned and the proper amount of such payment, and, the amount of such payments does not exceed a maximum possible amount to be determined by the municipality in accordance with the standards set out in the contract. (Murdock, 8/7/2009)(#142)(OP-09-00443) There is no prohibition in state law for a municipal airport board member or the manager of the municipal airport to lease a hanger (or hanger space) from the municipality, where such lease is approved by the municipal governing authorities and the rental amount is set at the same rate as for other renters of hanger space. No law prohibits an individual whose wife is a former alderman from being appointed to the municipal airport board by a successor board of alderman in which the wife is no longer serving as alderman. However, the Mississippi Ethics Commission should be contacted to determine if the questions implicate the state's ethics laws. (Carter, 8/21/2009)(#142)(OP-09-00462) The mayor of a code charter municipality may recommend an individual for appointment as municipal clerk or police chief to the board of aldermen without advertising in a newspaper. There is nothing that prohibits a board of aldermen from addressing a matter in a regular meeting that is not on the printed agenda. Code Section 97-13-37 makes it a crime for one to use threats or intimidation in an effort to influence how people vote in an election. (Benson, 8/21/2009)(#142)(OP-09-00485) A municipality must enact leave policies to ensure that its public safety employees are paid or granted compensatory time for the same number of holidays as other municipal employees. (Murdock, 8/28/2009)(#142)(OP-09-00486) A bid may not be further considered when the bid fails to contain a certificate of responsibility number on the exterior of the envelope or a statement providing that the bid does not exceed $50,000.00. The failure of a non-resident bidder to submit a copy of his applicable bid preference law prior to the time of award should result in a rejection of his bid. (Brannon, 8/21/2009)(#142)(OP-09-00461)

NEPOTISM

An aunt is a relative that would fall within the third degree as computed by the rule of civil law. The appointing authority of a deputy clerk is the board of aldermen in a code charter municipality. The position of deputy clerk falls within the five prohibited positions included in Section 25-1-53. (Hetzler, 8/28/2009)(#142)(OP-09-00483) Mississippi's nepotism law prohibits the board of alderman from hiring the brother-in-law of an alderman as police chief. (Lawrence, 8/7/2009)(#151)(OP-09-00452)

PUBLIC SERVICE COMMISSION

Mississippi Public Service Commission is a "public body" subject to the Open Meetings Law and its meetings at which official acts may be taken must be conducted pursuant thereto. (Presley, 8/27/2009)(#167)(OP-09-00491)

SCHOOLS

The language of the bond resolutions adopted by the board of trustees of the school district is sufficiently broad to include the constructing of a new elementary school building, rather than renovating the existing school building. Any "qualified school construction bonds" issued by the school district must be issued pursuant to existing statutory provisions for the issuance of school bonds and would be subject to the debt limits of Sections 37-59-5 and 37-59-7. (Turner, 8/14/2009)(#175)(OP-09-00446) If arising in the course and scope of employment, a teacher's absence due to being subpoenaed to testify regarding a student may be considered a professional duty which could negate the necessity of taking personal leave. (Treadway, 8/14/2009)(#206)(OP-09-00329) Section 37-7-203 prohibits a municipal employee from being appointed a trustee of a municipal separate school district. We find no exception in current state law that would permit a municipal employee to retain his trustee position in the fact situation described. (Farmer, 8/7/2009)(#211)(OP-09-00451) Section 37-7-203 prohibits a municipal employee from being appointed a municipal separate school district trustee. (Patch, 8/14/2009)(#211)(OP-09-00459)

SUPERVISORS

The Sharkey County Board of Supervisors has no authority, pursuant to Miss. Code Ann. Section 19-5-22, to forgive the delinquent garbage bill of the deceased husband and following the husband's death, his wife, who received garbage service at the address until relocation to a new address. The Board of Supervisors has no authority pursuant to Article 4, Section 100 of the Mississippi Constitution to forgive the delinquent garbage fees where there is no dispute as to garbage services provided to the address. (Woodard, 8/21/2009)(#220)(OP-09-00469) The determination of whether the terms of the proposed lease agreement will result in a donation to the private landowner must be made by the board of supervisors. The total amount of consideration paid by the county cannot exceed the value of use of the land. (Hamer, 8/14/2009)(#224)(OP-09-00467) Pursuant to HB 1, First Extraordinary Session 2009, counties are now authorized to use general fund monies for road and bridge construction, on 2 conditions: (1) that the counties do not so use more than 30% of the general fund, and (2) that any expenditures from the general funds so used for road/bridge construction triggers the same obligation counties have under 65-15-21 when spending road and bridge levy funds, i.e., to refund a certain portion to municipalities which maintain their own streets. (Lott, 8/7/2009)(#231)(OP-09-00413)

TAXES-AD VALOREM

Board of supervisors would be authorized to determine that a property owner/taxpayer does not owe penalties and interest for unpaid taxed under 27-41-11, when an error by the tax assessor resulted in the owner not having been assessed and an erroneous tax sale. (Yancey, 8/7/2009)(#236)(OP-09-00453)